DAPA and Expansion of DACA Rests on Fifth Circuit’s Shoulders in Texas v. United States

June 10, 2015

The case Texas v. United States will determine the fate of the proposed expansion of Deferred Action for Childhood Arrivals (DACA) and the proposed Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. This suit was filed in federal district court in Brownsville, Texas by twenty-six states, including Texas and Tennessee. The suit was filed shortly after President Obama’s November 20, 2014 announcement of the Immigration Accountability Executive Action, a series of administrative reforms of immigration policy. The reforms aim to expand DACA and create DAPA for the parents of U.S. citizens and lawful permanent residents who meet specific criteria.

On February 16, 2015, the court issued a preliminary injunction against DACA’s expansion and DAPA’s implementation after determining that the states are likely to succeed on their procedural APA claim. The opinion stated that Texas has standing to bring the lawsuit because DAPA and DACA’’s expansion will impose processing and issuance costs for the state when these individuals apply for driver’s licenses.

The government appealed the court’s decision to the U.S. Court of Appeals for the Fifth Circuit, which is proceeding on an expedited basis. The court will hear oral argument on July 10, 2015. The government also asked the Fifth Circuit to stay the injunction, or to stop the injunction from being in effect. On May 26, 2015, the Fifth Circuit denied that stay motion in a 68-page opinion, stating that the federal government was unlikely to succeed in its appeal of the preliminary injunction.

As the litigation on this matter continues, the status of millions of immigrants hangs in the balance. Though the litigation does not affect those who already have DACA, those who would likely be able to apply though DACA’s expansion, in addition to those that could apply for DAPA, will have to await this case’s resolution.